Municipal Corporation, … vs Panna Mahesh Chandra Dave on 31 January, 2020


Supreme Court of India

Municipal Corporation, … vs Panna Mahesh Chandra Dave on 31 January, 2020

Author: V. Ramasubramanian

Bench: N.V. Ramana, V. Ramasubramanian

                                               1

                                                                   REPORTABLE

                              IN THE SUPREME COURT OF INDIA
                               CIVIL APPELLATE JURISDICTION

                         Special Leave Petition (C) No.18065 of 2018


  MUNICIPAL COMMISSIONER, MUNICIPAL
  CORPORATION OF GREATER MUMBAI
  AND ORS.                                                   ... Petitioners


                                            Versus



  PANNA MAHESH CHANDRA DAVE AND ANR.                         ... Respondents

                                            WITH

                          Special Leave Petition (C) No.18212 of 2018

                                              AND
                          Special Leave Petition (C) No.18289 of 2018

                                              AND
                          Special Leave Petition (C) No.18399 of 2018

                                              AND
Signature Not Verified
                          Special Leave Petition (C) No.18599 of 2018
Digitally signed by
SATISH KUMAR YADAV


                                              AND
Date: 2020.01.31
15:20:04 IST
Reason:




                          Special Leave Petition (C) No.18336 of 2018
                                     2

                                 AND
             Special Leave Petition (C) No.18376 of 2018

                                 AND
             Special Leave Petition (C) No.18210 of 2018


                             JUDGMENT

V. Ramasubramanian, J.

1. Challenging a common order passed by the High Court of

Judicature at Bombay in a batch of twelve writ petitions, granting

the relief of allotment of alternative site to the petitioners in eleven

writ petitions (tenants) and granting the relief of consideration of a

request for grant of TDR (Transferable Development Rights)/DRC

(Development Right Certificate) to the petitioners in one writ petition

(owners of the land), the Municipal Corporation of Bombay has come

up with the present special leave petitions.

2. We have heard Mr. Shekhar Naphade, learned senior counsel

appearing for the Municipal Corporation of Bombay and Mr.

Siddharth Bhatnagar, learned senior counsel appearing for the
3

contesting private respondents.

3. The private respondents herein filed writ petitions on the file of

the High Court of Judicature at Bombay challenging the demolition

of the superstructures put up by them on a plot of land bearing CTS

Nos.4009/1 to 4009/7 at Village Dahisar, Taluka Borivali, MSD

Mumbai 400068. The case of the respondents 1 to 3 in Special Leave

Petition (C) No.18376 of 2018 (who were the petitioners in Writ

Petition No.3090 of 2017) was a little different from the case of the

petitioners in the other 11 writ petitions.

4. The case of the petitioners in Writ Petition No.3090 of 2017

(Respondents 1 to 3 in Special Leave Petition (C) No.18376 of 2018),

was that the aforesaid land originally belonged to one Mr. Dattatray

Mahadev Angare as per the City Survey Record; that upon the death

of the original owner, his wife Sushila was recorded as the owner in

the revenue records in the year 1983; that upon Sushila’s death on

15.03.1995, the names of her legal heirs, including the name of her

son Mr. Suresh Angare were entered in the revenue record; that the

said Suresh Angare died on 31.01.2008 leaving behind him
4

surviving, his widow and two sons, who were the petitioners in Writ

Petition No.3090 of 2017; that those legal heirs thus became the

owners of the aforesaid plot and the superstructures standing

thereon; that the family of Dattatray Mahadev Angare had put up 11

structures, in the year 1955, on the said plot of land and the same

was named as Jeevan Ganga Chawl; that those structures were let

out to tenants; that in the year 1961, the superstructures were also

assessed by the Municipal Corporation; that the owners were regular

in paying tax to the Municipal Corporation, from the year 1961; that

in view of the said assessment, the Chawl became a protected

structure within the datum line of year 1962; that therefore the

Chawl cannot be demolished or removed without providing

permanent alternative accommodation to the tenants; that vide a

notice dated 13.02.1979 issued under Section 351 of the Bombay

Municipal Corporation Act, the Corporation Authorities claimed that

3 of those structures were illegally constructed and were liable to be

demolished; that challenging the said notice, Sushila Dattatray

Angare filed a civil suit and obtained an injunction against

demolition; that again the Municipal Corporation issued notice dated
5

23.06.2008 to four tenants on the ground that Bharucha Road was

to be widened and that those four tenants will be allotted alternate

accommodation at Anand Nagar Municipal Market; that those four

tenants expressed unwillingness to accept the alternative

accommodation at that point of time; that thereafter Municipal

Corporation again issued a notice dated 02.07.2016 to those four

tenants offering a fresh allotment in the Municipal Retail Market;

that subsequently the Corporation issued proceedings dated

11.04.2017 cancelling those allotments on the ground that those

four allottees did not take possession; that again on 11.10.2017, the

Corporation issued a fresh notice to those four tenants to vacate the

premises within seven days; that on 26.10.2017, the officials of the

Municipal Corporation suddenly landed up in the premises along

with a police force from Dahisar Police Station and started

demolishing the superstructures in which the tenants were carrying

on business; that thereafter the officials of the Corporation forcibly

removed all the eleven tenants from the premises and demolished

their structures; that the officials of the Corporation did not even

permit the tenants to remove their valuables including cash,
6

furniture and fixtures from the premises and that therefore after

issuing a legal notice, the writ petitioners were conceded to approach

the High Court.

5. While what is stated above, was the case of the petitioners in

W.P. No. 3090 of 2017, the case of the petitioners in the other writ

petitions was that they are tenants in respect of the 11 structures

put up in the premises and that they have been forcibly evicted and

the structures demolished without following due process of law.

6. The Corporation filed separate affidavits in reply to each of the

writ petitions contending inter alia that Padmakar Javle Road, which

is parallel to Dahisar Railway Station at East, provides the only

access to the commuters approaching the Railway station; that the

width of the road was only 5 meters; that considering the

narrowness of the road and considering the need to allow access to

fire brigade and ambulance in case of any untoward incident, the

Municipal Commissioner, by his proceeding dated 15.01.1974

prescribed a Regular Line for the said Padmakar Javle Road upto

13.40 meters, in terms of the provisions of Section 297(1) of the

Bombay Municipal Corporation Act; that when the Corporation took
7

steps for widening the road, a few people approached the City Civil

Court and those who were found eligible were granted alternative

premises; that the Municipal Corporation received a letter dated

10.03.2010 from the Deputy Collector and Competent Authority

Borivali stating that the ownership of the land affected by the road

widening, vested with State Government; that out of the 11

structures demolished by the Corporation, 4 were found to belong to

persons who were eligible for alternative accommodation; that

however even those persons had approached the Court by filing writ

petitions; that those four persons did not accept the alternative

accommodation despite repeated offers and, hence, the offer had to

be withdrawn; that out of the remaining structures, 4 were found

only to be illegal shanties and the names of persons claiming to be

the owners of these shanties, are not reflected in Annexure II

prepared by the Deputy Collector; that the Corporation was willing

to grant necessary benefits such as TDR to the original owner of the

plot of land which is affected by the road widening scheme; that the

first respondent in Special Leave Petition (C) No.18376 of 2018

attended the meeting convened in this regard on 11.11.2017, but
8

failed to contact the office of the Chief Engineer (DP); and that

therefore the writ petitions were liable to be dismissed.

7. After considering the pleadings and the contentions advanced

on both sides, the High Court found that it was not even the case of

the Municipal Corporation that they followed due process of law

before demolishing the structures and that the action of the

Municipal Corporation in demolishing the superstructures and

taking forceful possession was high handed. But instead of granting

the relief of restitution, the High Court granted one set of reliefs to

the persons claiming to be the owners of the land and another set of

reliefs to the tenants. It is enough to extract the operative portion of

the order of the High Court to show the nature of the reliefs granted.

It reads as follows:

“(i) It will be open for the petitioners in Writ Petition (L)
No.3090 of 2017 to make an Application to the Municipal
Commissioner for grant of TDR (Transferable
Development Rights)/DRC (Development Right Certificate)
in respect of the area out of the road widening. If such an
Application is made, the Municipal Corporation or its
appropriate authority shall decide the same within a
period of 60 days from the date of filing of the
Application. The decision taken thereon shall be
communicated to the petitioners immediately thereafter.
We clarify that we have made no adjudication on the title
9

claimed by the said petitioners;

(ii) As regards the petitioners in all the other Writ
Petitions, we direct the Mumbai Municipal Corporation to
allot to the said Petitioners tenements having the size
equal to that of their demolished tenements. The
premises offered shall be in a vicinity of the demolished
premises. The premises shall be such that the same will
have a frontage on any of the main road;

(iii) The allotment of the premises shall be made to the
said Writ Petitioners as expeditiously as possible and in
any event on or before 30 June, 2018;

(iv) We make it clear that the allotment will have to be
made free of cost. However, it will be open for the
Municipal Corporation to impose appropriate terms and
conditions;

(v) The Petitions are disposed of with the aforesaid
directions;

(vi) All concerned to act upon an authenticated copy of
this order.

8. Before proceeding further, it must be recorded that the High

Court was actually convinced to order restitution, but the High

Court refrained from doing so only due to the fact that a public road

had already been constructed on the land. In other words, the High

Court actually balanced the private interests of the respondents­

herein and the public interest.

10

9. Despite the fact that the High Court merely granted limited

reliefs and despite the fact that even according to the Corporation,

four out of eleven tenants were eligible for alternative

accommodation, which was in fact offered to them, the Municipal

Corporation came up with twelve special leave petitions against the

common order passed in twelve writ petitions. The only substantial

questions of law sought to be raised by the petitioners were (i)

whether the High Court could have overlooked the readiness and

willingness on the part of the Municipal Corporation to grant the

benefit of TDR to the original owner of the plot of land; and (ii)

whether the High Court was right in overlooking the prescription of a

Regular Line way back in the year 1974 for the widening of the road

from 5 meters to 13.40 meters.

10. Though the aforesaid questions would not technically qualify as

substantial questions of law of public importance, this Court

ordered notice in the special leave petitions and also granted a stay

of operation of the impugned judgment, on 30.07.2018 when the

special leave petitions came up for hearing.

11

11. Subsequently on 05.12.2018 this Court disposed of four special

leave petitions which arose out of writ petition Nos.3087, 3089, 3092

and 3095 of 2017, on the short ground that the Municipal

Corporation had itself found the petitioners therein to be eligible for

allotment of alternate accommodation. After so disposing of four out

of twelve writ petitions on 05.12.2018, this Court proceeded to direct

the Secretary of the Bombay High Court Legal Services Committee to

examine the relevant records and to submit a report about the

eligibility of the other tenants to alternate accommodation. This

order was passed in view of the stand taken by the Municipal

Corporation that the other tenants were not eligible for alternate

accommodation as per the guidelines of the Mumbai Municipal

Corporation. It will be useful to extract the order dated 05.12.2018

passed by this Court as follows:

“Applications seeking exemption from filing official
translation of Annexures are allowed.

Heard the learned Senior counsel appearing for the
petitioners and the learned counsel appearing for the
respondents.

The respondents­herein filed Writ Petitions before the
High Court of Judicature at Bombay claiming that they
are the owners of the land and structures which were
taken away by the Mumbai Municipal Corporation for
widening of road without paying any compensation to
12

them.

After hearing the parties, the High Court has disposed of
the Writ Petitions with the following directions which are
extracted below:­

(i) xx xx xx xx

(ii) As regards the petitioners in all the other Writ
Petitions, we direct the Mumbai Municipal Corporation to
allot to the said petitioners tenements having the size
equal to that of their demolished tenements. The
premises offered shall be in the vicinity of the demolished
premises. The premises shall be such that the same will
have a frontage on any of the main roads;

(iii) The allotment of the premises shall be made to the
said Writ Petitioners as expeditiously as possible and in
any event on or before 30th June, 2018.

(iv) We make it clear that the allotment will have to be
made free of cost. However, it will be open for the
Municipal Corporation to impose appropriate terms and
conditions.

The Mumbai Municipal Corporation challenged the
impugned order of the High Court by way of filing Special
Leave Petitions before us.

Mr. Shekhar Naphade, learned Senior counsel appearing
for the petitioners submitted that out of eleven
respondents, who filed Writ Petitions before the High
Court, four persons namely (i) Shri Bhimsen P. Singh, (ii)
Mr. Anil Surajman Shukla, (iii) Mr. Muniram Shivpujan
Gupta and (iv) Mr. Kantilal Girdhar Gandhi are eligible
for allotment of alternative premises at a suitable place,
as per the policy of the Mumbai Municipal Corporation, if
they comply the conditions imposed by the said
Corporation.

Therefore, Special Leave Petition No.17082/2018,
Special Leave Petition No.18331/2018, Special Leave
Petition No.18403/2018 and Special Leave Petition
No.18384/2018 are disposed of recording the statement
made by the learned Senior counsel for the petitioners.
13

So far as remaining seven respondents are concerned,
four of them are not eligible as per the guidelines of the
Mumbai Municipal Corporation and rest of the three are
ineligible as per the Slum Rehabilitation Act.
However, learned Senior counsel submits that in case
those seven respondents produce relevant material, the
Municipal Corporation, after examining the material and
if it is satisfied, they are willing to extend the benefit as
per the regulations and rules.

In view of the stand taken by the learned Senior counsel
for the Corporation, we direct the parties to appear before
the Secretary, Legal Services Authority of the Bombay
High Court and the said Authority will examine the
relevant records produced by the petitioners as well as
the respondents and submit a report before this Court
about their eligibility in accordance with the guidelines of
the State Government as well as the Municipal
Corporation/Slum Development Authority.

We direct the parties to approach the Secretary, Legal
Services Authority of the Bombay High Court within a
week’s time from the date of receipt of the order to enable
the said Authority to decide and submit a report
expeditiously preferably within a period of eight weeks
from the date of communication of this order. List the
other Special Leave Petitions after Report is received from
the Legal Services Authority of the Bombay High Court.”

12. Pursuant to the said order, the Secretary of the High Court

Legal Services Committee, Bombay filed a report dated 07.02.2019.

The important findings recorded in the Report of the High Court

Legal Services Committee are (1) that the assessment certificate

issued by the Corporation shows the existence of superstructures

from a period prior to 1961 (2) that some of the respondents in the
14

special leave petitions were issued with notices under Section 3Z(2)

(i) of the Slum Act and that they are eligible for permanent

alternative accommodation, as they have produced electricity bill

Gumasta Licence etc. from a period prior to 1995 while the cut­off

date was only 01.01.2000 and (3) that the other respondents are

also eligible for permanent alternative accommodation, as their

superstructures were duly assessed in the year 1961 and

indisputably, those structures were demolished on 26.10.2017.

13. The Municipal Corporation has filed an affidavit of objections to

the Report of the High Court Legal Services Committee. It is claimed

in the said affidavit that the respondents did not produce any proof

of existence of superstructures prior to the Datum Line of 1962; that

the shop owners failed to submit any valid, legal proof; that the land

under reference was not declared as a slum under the Slum Act;

that the owner of the land Smt. Geeta Angare had not submitted the

names of the eligible tenants; that out of 11 structures, the

occupants of 4 structures were already found eligible for alternate

accommodation; that out of the remaining 7 structures, 3 have been
15

assessed to tax and that, therefore, in addition to the 4 structures

declared eligible earlier, 3 more may become eligible for alternative

accommodation.

14. Drawing our attention to the various documents and also to the

Report of the High Court Legal Services Committee, it was

strenuously contended by Mr. Shekhar Naphade that the grant of

alternate accommodation cannot be claimed by the respondents as a

matter of right, unless they fulfill the parameters fixed by the

Municipal Corporation and that the ad­hoc identification of parties

for the grant of alternate accommodation without any supporting

documents would create huge disparities. The learned Senior

Counsel has also assailed the findings of the High Court Legal

Services Committee on the ground that those findings were not

supported by any documentary evidence.

15. We have carefully considered the contentions of the learned

senior counsel for the Municipal Corporation. We should point out

at the outset that the legal heirs of the original owner of the land

were the petitioners in one writ petition and eleven persons claiming
16

to be the tenants, were the petitioners in the other writ petitions.

Insofar as persons claiming to be the owners of the land are

concerned, the Municipal Corporation itself had conceded before the

High Court that they were willing to offer TDR. In paragraph 15 of

the affidavit in reply filed by the Municipal Corporation in Writ

Petition No. 3090 of 2017, it was stated by the Municipal

Corporation as follows:

“I say that the respondents Nos.2 to 4 are willing to grant
the necessary benefit such as TDR to the rightful owner
of the plot of land which is affected by road widening
scheme. I say that the petitioner No.1 had contacted the
officers at R/North Ward as regarding the issuance of
TDR. The petitioner No.1 had attended the meeting in
Asst. Municipal Commissioner, R/North office on 11 th
November, 2017, when she was informed that she has to
contact the office of Chief Engineer (DP) along with
relevant papers. I say that the petitioner had agreed and
given assurance to the respondent that she will contact
the said office for granting her TDR in lieu of land being
acquired for the purpose of road widening. I understand
that petitioner No.1 has not contacted the office of Chief
Engineer (OP) for the reasons best known to her.”

16. After having stated so in their affidavit in reply, the Municipal

Corporation ought not to have come up with a special leave petition

even in respect of Writ Petition No.3090 of 2017. In fact one of the

two substantial questions of law sought to be raised, which we have
17

extracted earlier, also concedes the position taken the Corporation

that the respondents 1 to 3 in Special Leave Petition No.18376 of

2018 are entitled to relief. Therefore, we do not know how and why

the Corporation is blowing hot and cold.

17. Insofar as those eleven tenants are concerned, the Corporation

agreed both before the High Court and before this Court that four of

them are entitled to alternate accommodation. Therefore, the special

leave petitions filed in respect of those four have also been disposed

of by the order dated 05.12.2018.

18. Therefore, we are left only with seven tenants. In the affidavit

of objections filed to the Report of the High Court Legal Services

Committee, the Corporation has conceded that three out of those

seven tenants are also eligible. Therefore, ultimately the dispute has

boiled down only to four tenants.

19. The High Court has recorded a finding of fact that the

Municipal Corporation demolished the superstructures and took

possession in a high handed manner. The Legal Services Committee

has recorded a finding that the superstructures were in existence

from a period prior to 1961. These findings of fact cannot be
18

interfered with by this Court in a special leave petition under Article

136 of the Constitution of India, unless the findings shock our

conscience. The findings of the High court are not perverse.

Therefore, we find absolutely no grounds to interfere with the

judgment of the High Court. Hence, the special leave petitions are

dismissed. No costs.

…..…………………………..J
(N.V. Ramana)

…..…………………………..J
(Vineet Saran)

.…..………………………….J
(V. Ramasubramanian)

JANUARY 31 ,2020
NEW DELHI.



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